Protect Our Rights by Protecting Our Constitution
IN THESE DIVISIVE TIMES, IT IS HELPFUL TO REMEMBER THAT MOST PEOPLE ARE FUNDAMENTALLY GOOD AND DECENT HUMAN BEINGS. HOWEVER, WE MUST NEVER FORGET THAT NOT EVERYONE IS MOST PEOPLE.
The other day, I prepared a lengthy post about the Republican focus on Changing our Constitution - Republicans are 24 Seats Away
This is an important issue that I think we must understand and take seriously. In that vain, this diary is the second installment on the same topic.
The Constitution, while imperfect, has allowed for rights to be protected and expanded over time. Through a slow process of social transformation driven by the blood, sweat, and tears of millions of caring and hard working people our Constitutional process is allowing us to reach for that “more perfect union.” The fight has been hard, we have seen setbacks along the way. Trump is definitely a setback, but the protections afforded by the Constitution have allowed us to fight back and move forward. We can not take those protections for granted.
Those protections are not only under attack from Trump. In fact, Trump, while deserving of our attention, also draws our attention from a very real danger confronting us. The calling of a Convention of States to amend the Constitution. Before I get into what exactly a Convention of States actually is, I want to make it crystal clear conservatives are pushing for this and as you will see they are frighteningly close to pulling this off.
REPUBLICANS ARE FOCUSED ON CALLING A CONVENTION
First, here are some links that clearly demonstrate Republicans are in fact working toward this goal, including the radical Steve Bannon:
- from Breitbart: Article V of the Constitution: An Emergency Solution, Hidden in Plain Sight
- from ALEC: APPLICATION FOR A CONVENTION OF THE STATES UNDER ARTICLE V OF THE CONSTITUTION OF THE UNITED STATES
- they are organizing around this: Convention of States: A Project of Citizens for Self-Governance
AMENDING THE CONSTITUTION
Our Constitution allows for amendments. Thomas Jefferson addressed specifically why this innovation is important:
Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched; who ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. Let us follow no such examples, nor weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs. Each generation is as independent as the one preceding, as that was of all which had gone before.
Article 5 of the Constitution provides a two-part approach for amending the Constitution. There is a proposal phase and a ratification phase.
THE USUAL WAY
Historically speaking we have only used one method for the proposal phase. Because of this, far too many of us think this is the ONLY way to do it. It is not. The one method that has been used to propose the existing amendments was to have 2/3rds of the United States House of Representatives and 2/3rds of the United States Senate vote in favor of the proposed amendment. This creates a false sense of security, To get to 2/3rds the Republicans would need to add15 Senators and 49 House members (67 Senators and 290 House Members would be the threshold in each body). That is a heavy, heavy lift for them, so fairly unlikely.
There have been 33 amendments that have been proposed with the required 2/3rds majority in each of our United States congressional bodies.
Once proposed by congress 32 amendments have been submitted to be ratified by majority vote in each legislative body in at least ¾ of the states. One has been submitted to the second process for ratification, a convention in each state to individually ratify the amendment Of those, 26 were actually ratified by enough state legislatures to amend the Constitution while the 21st amendment was successfully ratified by enough states through the state convention process.
To summarize, there are 4 basic paths to go through both parts of the amendment process:
- Proposal by convention of states, ratification by state conventions (never used)
- Proposal by convention of states, ratification by state legislatures (never used)
- Proposal by Congress, ratification by state conventions (used once)
- Proposal by Congress, ratification by state legislatures (used all other times)
Clicking on any of the paths will take you to a website with more details than provided here about the process.
WHAT EXACTLY IS A CONVENTION OF STATES?
As you can see, the Constitution provides a way that circumvents Congress. This Convention of States. George Mason fought to include this convention as a guard against the potential of a tyrannical legislative body, in whom, the founders recognized, they placed most power.
Fundamentally, this Convention of States can start once 2/3rds of all states pass a resolution calling for the formation of such a convention. That would be 34 states today. Once convened the convention itself would set its own rules. Every state in the union, except Hawaii, has passed such a resolution at least once in their history. Most have been rescinded.
Usually, the resolutions call for the formation of the Convention of States to address a specific issue. Conservative states have called for a balanced budget amendment through this process, liberal states have called for ending corporate personhood through this process. It does not matter what the reason the resolution was passed for, once the Convention of States is convened they set their own rules and their own agenda. While such a convention has never been called since the ratification of our Constitution we do have an American precedent to look at.
The Constitutional Convention of 1787 was called by the 13 Confederated States of America. As summarized by ConstitutionFacts.com
The Constitutional Convention took place from May 14 to September 17, 1787, in Philadelphia, Pennsylvania. The point of the event was decide how America was going to be governed.Although the Convention had been officially called to revise the existing Articles of Confederation, many delegates had much bigger plans. Men like James Madison and Alexander Hamilton wanted to create a new government rather than fix the existing one. The delegates elected George Washington to preside over the Convention. <emphasis added>
In the modern context, this malleability of the purpose of such a convention is precisely why I am alarmed by the prospect.
34 STATES IS A LOT OF STATES — THIS CAN”T EVEN GET STARTED
I agree, 34 states is a lot of states. But there are 2 distinct realities that put this into play:
- 28 states have a standing resolution calling for the convening of such a convention. Rhode Island was the last to pass one in 2015. These resolutions do not expire unless an expiry date is written into it or it gets rescinded. As near as I can tell, Rhode island, California, New Jersey and Vermont are among that list of 28 states with active resolutions on the books. Wisconsin Senators have discussed advancing it this year, as well as in Wyoming.
- Republicans already control all legislative bodies in 32 states. They are only two short of initiating a Convention of States.
So yeah, we are in the territory of getting a very large civics lesson, the consequences of which are difficult to predict at best. Given the history, that unpredictability should concern even the most skeptical person reading this. I mean, the first thing the Convention in 1787 did was declare their proceedings secret and then commenced to institute an entirely new form of government.
OK — MAYBE — BUT NO WAY THEY CAN RATIFY, RIGHT?
Yeah, getting 38 states to ratify anything seems like an impossible lift. It is not, so long as we keep losing state legislative races. Republicans are only 24 seats away from controlling all legislative bodies in 38 states. That is 24 seats out of 7,383 seats nationwide. Here is a table of the partisan breakdown of the state legislative bodies republicans need to flip to control enough state legislatures to ratify what they like.
LEGISLATIVE BODIES BETWEEN REPUBLICANS & CONTROL OF 38 STATE LEGISLATURES
THAT IS TOO CLOSE FOR COMFORT
It just is. I am not trying to be alarmist, but I know a lot of you look at the state of our politics through a variety of lenses.
- Some think that Trump, at the behest of Bannon, models the worst of Fascist ideology.
- Others fear the religious right wing elements of the conservative movement.
- Still, more are only in this to protect those they love.
- Others are worried about a rollback of social benefits and the safety net.
- Some are worried about all of that.
The only thing I know, no matter what lens you look through, I would not trust any one party with the kind of power that would come with total control over all of the legislative bodies in 38 states. Given the powers granted to that party by the Constitution, we risk our republic falling to a strongman, just as Rome’s great republic fell to Octavian Caesar, Even if that is not in the cards I still fear the end of marriage equality, the elimination of reproductive rights. Voting rights and other civil rights could be curtailed, making life even more precarious for people of color. A balanced budget amendment could quickly end Medicaid and Medicare as we know it.
The least concerning scenario we could imagine coming from the republicans gaining such power should be enough to alarm each and every one of us, no matter the reason we are engaged in politics, to begin with.
THIS IS NOT LIKE THE ERA FIGHT
I know many of the boomer generation view this through the lens of the attempt to get the ERA ratified after passage through Congress. No one party had so much control over state legislatures. Both parties actually contained conservatives and liberals at the time. We are more polarized, and more ideologically aligned on most issues. There are major fractures forming within the coalitions, but there are things modern republicans always do when they gain legislative power, we can be certain they would repeat that in this process.
If they hit 38 states, they will set the rules of the Convention of States. Once convened they will push through an abortion ban first, as they do in every legislative body they gain control of. They won't stop there, they will propose as many amendments as they like. There is no constraint on a Convention of States once it gets started. There is no judicial review, they set the rules themselves. Congress is taken out of the picture, not that that would help anyway.
This would be unlike anything we have ever witnessed before. Again, even the best case scenario for what the Republicans might do with such power should concern any Democrat deeply.
OUR BIGGEST CHALLENGE — WE DO NOT EVEN COMPETE
After I posted my first piece on this issue I followed up with another post about a step we can take to begin to reverse this. I dug into the next RED STATE state legislative race on the calendar. The Virginia House of Delegates 100 members stands for election this coming fall. Just looking at Virginia, a huge problem revealed itself, so I dug a little deeper
So if you look at just the Virginia line, Democrats did not contest 44 seats last cycle. That is a huge problem, that means Republicans only needed to win 7 contested races to secure a majority. That is making it way to easy for them. We need to start winning back majorities in state legislative races. The first step is to START RUNNING in these state legislative races. The filing deadline is March 30th to show up as a Democrat on the ballot. Right now Democrats are only signed up to contest 47 seats out of 100 this fall. I posted a detailed diary about this Virginia race Tuesday: Turn Virginia Blue in 2017
But this is not just a Virginia problem. We need to rally around and help Virginia out. Money, time, whatever they need, if we can flip the House of Delegates, we have more breathing room going into the 2018 elections.
Looking at all of the republican legislative bodies on the next line, Democrats concede to Republicans fully 26% of all races before election day even arrives. We must compete to turn back this tide. The stakes are very real. We wonder why these rural voters “vote against their economic interests” all the time. Looking at this, it is not that they are voting against their own interests, it is that they are simply voting for the people talking to them.
LET’S GET TO WORK FLIPPING RED LEGISLATIVE BODIES
So this diary is meant to highlight the danger of ignoring this issue for sure. But we are not doomed to this outcome. We can turn things around. We need to flip 18 seats in Virginia this fall, but when you consider we did not compete in 44 races there last cycle, that 18 number seems relatively small. We need to compete. Look at it this way, Most of those races were won by less than 10,000 votes, a bunch around just 5,000 votes. If you get 10 friends, acquaintances, and family members to knock on 100 doors each week until election day in November you will have hit 40,000 doors. I bet you could win most these races that way.